Suspension from work for refusal to be vaccinated against coronavirus: procedure and position of Rostrud 2021

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Svetlysheva Olga Yurievna , teacher of the Center in the direction of Personnel Management and Personnel Management

1. What is suspension from work and how does it differ from dismissal?
2. In what cases is it necessary to suspend an employee from work?
3. Specific cases of employee removal from work
4. How to complete the removal procedure
5. Example of a suspension procedure
6. Typical violations when removing an employee and the employer's liability

What to do if an employee brings a medical certificate in which he is prohibited from performing his work for health reasons? Or is the driver temporarily disqualified from driving? But what if an employee shows up to work while intoxicated? Or if the employee did not undergo a mandatory medical examination on time? These situations seem completely different, but they are united by a common procedure - suspension from work.

What is suspension from work and how does it differ from dismissal?

In all of the above cases, the employer is obliged to suspend the employee from work, i.e., not allow him to work for the entire period of time until the circumstances that became the basis for removal or prohibition from work are eliminated.

The procedure for removal from work differs from dismissal in that the former does not entail the termination of the employment relationship. But in some cases, the employer has the right to choose: fire the employee or suspend him from work.

For example, if an employee appears at work in a state of alcohol, drug or other toxic intoxication, the employer may suspend him from work or fire him.

In what cases is it necessary to suspend an employee from work?

1. The employee showed up to work in a state of alcohol, drug or other toxic intoxication.
2. The employee did not undergo training and testing of knowledge and skills in the field of labor protection in the prescribed manner.
3. The employee did not undergo a mandatory medical examination in the prescribed manner, as well as a mandatory psychiatric examination in cases provided for by the Labor Code of the Russian Federation and other regulatory legal acts.
4. In accordance with the medical report, contraindications were identified for the employee to perform work stipulated by the employment contract.
5. The employee’s special right (license, right to drive a vehicle, right to carry a weapon, other special right), which entails the impossibility of the employee fulfilling his duties under the employment contract, has been suspended for a period of up to 2 months.
6. A requirement has been raised by bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation.

Who will be affected by mandatory vaccination?

Each region defines its own risk groups. Therefore, it is important to read the regulations carefully. But in general, mandatory vaccination affects categories of employees who come into contact with a large number of people and work in the following areas:

• trade;
• public catering;
• beauty salons, cosmetics, spa salons, massage parlors, solariums, baths, saunas, fitness centers, fitness clubs, swimming pools;
• domestic services;
• client divisions of financial organizations, as well as organizations providing postal services;
• MFC;
• public transport, taxi;
• education, health care, social protection and social services;
• Housing and communal services and energy;
• cultural, exhibition, educational events (including museums, exhibition halls, libraries, lectures, trainings);
• leisure, entertainment, entertainment events (including gaming events, master classes);
• children's playrooms, children's entertainment centers, etc.;
• theaters, cinemas, concert halls;
• mass physical education and sports events;
• civil servants, municipal employees.

The requirement applies to everyone who works under employment contracts and GPC agreements.

Important documents

Resolution of the chief state sanitary doctor for the city of Moscow dated 06/15/2021 No. 1 “On carrying out preventive vaccinations for certain groups of citizens according to epidemic indications”
Resolution of the chief state sanitary doctor for the Moscow region dated 06/16/2021 No. 3 “On carrying out preventive vaccinations for certain groups of citizens according to epidemic indications” indications"

Resolution of the Chief State Sanitary Doctor for the Kemerovo Region - Kuzbass dated June 17, 2021 No. 10 “On carrying out preventive vaccinations for certain groups of citizens for epidemic indications”

Resolution of the Chief State Sanitary Doctor of the Sakhalin Region dated June 18, 2021 No. 204 “On additional measures to prevent the new coronavirus infection (COVID-19) in the Sakhalin Region”

Specific cases of employee removal from work

Other cases provided for by the Labor Code of the Russian Federation and regulatory legal acts of the Russian Federation include suspension:

1. Art. 331.1 of the Labor Code of the Russian Federation provides for the removal of a teacher if information is received from law enforcement agencies that he is being subjected to criminal prosecution for intentional grave and especially grave crimes, until the termination of criminal proceedings in the case or before the entry into force of a court verdict.
2. Art. 348.5 of the Labor Code of the Russian Federation provides for the removal of an athlete from participation in sports competitions in the event of sports disqualification or at the request of the all-Russian sports federation for the relevant sport.
3. Art. 330.4 of the Labor Code of the Russian Federation - an employee engaged in underground work, if he does not comply with safety requirements, does not use the issued personal protective equipment, or if the employee has prohibited explosive and fire-hazardous items (lighters, matches, smoking accessories and other sources) while in underground areas fire).
4. Art. 327.5 of the Labor Code of the Russian Federation - a foreign citizen or stateless person in the event of suspension or expiration of a work permit/patent, temporary residence permit, residence permit in the Russian Federation, the term of a voluntary health insurance contract/policy or the provision of medical services. In this case, the period of removal of a foreign employee cannot exceed one month, and if new permits are not issued during this time, the employment contract is terminated.
5. Other cases of removal in relation to state civil servants, police officers, and the Investigative Committee are described in other articles of the Federal Law

How to report the number of vaccinated workers

The Mayor of Moscow signed Decree No. 32-UM dated June 16, 2021, in which he indicated the need for employers to report on compliance with the requirements of the decree on compulsory vaccination.

During the period from July 1, 2021 to July 15, 2021, individual entrepreneurs and organizations must submit information on the number of vaccinated employees .

The report form (provided in the Decree) is submitted electronically through the personal account of a legal entity or individual entrepreneur on the website of the mayor and government of Moscow. In the report, in addition to general information about the company and individual entrepreneurs, you must indicate the total number of employees and information about employees confirming compliance with the resolution.

The following information is entered for vaccinated employees:

• SNILS;
• compulsory medical insurance policy number (if available);
• series and number of an identity document or patent (for foreign citizens);
• phone number.

The information that the employer submits in the report will be checked for compliance automatically.

A similar report, according to the Decree of the Governor of the Moscow Region dated June 16, 2021 No. 184-PG, must be submitted by employers in the Moscow region. The report should be submitted electronically through the personal account of the organization or individual entrepreneur on the portal of state and municipal services of the Moscow region.

Who to vaccinate against COVID-19: answers to common questions

A selection of answers to the most frequently asked questions has appeared on the website of the Moscow Mayor - about how to fill out a report and who exactly to vaccinate if the company is large.

What should be indicated in the reports in the column with the total number of employees - the total number of employees or the number of those who should be vaccinated?

Section 8 indicates the number of all employees. The list includes:

• actually working employees;
• employees on business trips;
• employees on sick leave;
• employees performing state or public duties;
• those hired on a part-time basis.

Section 9 indicates the number of vaccinated people, calculated from the total number of employees of the organization or individual entrepreneur, including executors under civil contracts, working in the city of Moscow.

The production has its own store. 200 people work in production, 30 in trade. Is it enough to vaccinate 25 people involved in trade?

If the main type of activity is the one indicated in the list of areas whose workers are subject to vaccination, then at least 60% of all production workers working in the city of Moscow must be vaccinated. It does not matter how many of them are engaged in trade.

The chain has stores and warehouses in different cities. The total number of all employees is 3,000. In Moscow, 500 people work in the office and in stores, and 400 people work only in stores. Is it enough to vaccinate 300 people from stores?

It is necessary to determine 60% of employees not from the payroll of the entire network in Russia, but from the list of employees actually working in Moscow. In this case, the main type of activity of the employer (section 6) must be included in the list of areas whose employees are subject to vaccination.

Who is among those vaccinated for the network - those vaccinated in Moscow or at all enterprises of the network?

We need to count the number of vaccinated people actually working in Moscow.

Example of a suspension procedure

1. Record the event. It is necessary to write a memo to the head of the organization.
2. Request an explanation from the employee in writing. An explanatory note will help to understand the cause of the violation and determine the employee’s guilt. If an employee does not undergo a mandatory medical examination due to the fact that the employer did not issue him a personal medical book on time, it is the employer’s fault, and during the suspension the employee is paid for the entire period of suspension from work as idle time. If the reason is not valid, then the employee will not receive wages during the suspension.
3. Issue an order for removal from work, familiarize the employee with the order and sign it. The order is drawn up in any form, it should indicate:
   • employer's name;

   date and registration number of the order;

4. place of publication;
5. in the ascertaining part - the basis for removal from work with reference to Art. 76 of the Labor Code of the Russian Federation or another provision of law;
6. in the administrative part - the full name and position of the employee subject to removal; the period of suspension (the date or condition under which the employee will be allowed to work), the procedure for calculating wages during the period of suspension, the position and name of the person responsible for executing the order;
7. at the basis - documents confirming the legality of the removal: reports and explanatory notes;
8. signature of the employer's representative.

The employee should be familiarized with the order and signed. If the employee refuses to familiarize himself with the order, a corresponding act is drawn up in any form and a corresponding note is made on the order.

9. Enter information into the time sheet. When filling out a time sheet, you should select the correct codes depending on the payment procedure used. Those days of suspension from work that are subject to payment, for example, suspension through no fault of the employee, are marked with the letter code “NO” or “34”; days without payroll are marked with the code “NB” or “35”.
10. Make an entry in the employee’s personal card. An entry about dismissal from work is not made in the work book. In your personal card, this information can be entered in section X “Additional information”, since the time of removal from work shifts the period of annual paid leave.

Typical violations when removing an employee and the employer's liability

1. The employer believes that removal from work is its right and not its obligation. It should be remembered that the employer does not have the right to choose whether to suspend the employee from work or not: the employer is obliged to do this, otherwise it is the employer who is responsible for the violation.
2. There are no grounds for removal. If the employer cannot prove that the suspension was justified, it will be held liable for violating the employee's rights.
3. The registration of the suspension occurs in violation of the procedure. For example, there is no written explanation from the employee, the employee is not familiar with the order for signature, etc. In this case, removal from work may be considered illegal.
4. The deadlines for registering the suspension are being violated. If the employer did not immediately suspend the employee from work after receiving information about the event, then he endangered the life and health of the employee and (or) other people.

For violation of Art. 76 of the Labor Code of the Russian Federation “Suspension from work” the employer bears responsibility. He may face a fine for a legal entity of up to 50,000 rubles. and in some cases, the obligation to compensate the employee for the earnings he did not receive during the illegal suspension from work.

22.03.2021

Requirements for employers in connection with mandatory vaccination

If an individual entrepreneur or organization works in those areas of business that are indicated in the decrees of the chief physician, they must organize vaccination of at least 60% of employees before certain dates:

• until July 15, 2021 – with the first component or single-component vaccine;
• until August 15, 2021 – the second component of the vaccine.

The requirement will not affect only those who have contraindications to vaccination.

Convenient tools for recording personnel events, generating orders and other documents

Companies and individual entrepreneurs must report the number of vaccinated people in special reports.

In addition, the employer is responsible for conducting awareness-raising work on the prevention of COVID-19 among employees.

Note! For Moscow entrepreneurs, the deadline for submitting vaccination reports for 60% of employees has been extended until July 22 .